도로점용허가와 주민소송 — 대법원 2019. 10. 17. 선고 2018두104 판결 사례 —

In principle, construction is prohibited on the road. Occupation permits for the purpose of building facilities on the road may be allowed exceptionally only if the publicity in the passive sense is satisfied that the publicity of the road as a whole must not be infringed. It is consistent with the system and purpose of the law to interpret the ‘underground shopping center’ or ‘basement’ that can be constructed under the road through the road occupancy permit, limited to facilities attached to the underpass, which is a three-dimensional pedestrian facility. Therefore, it is difficult to agree with the contents of the ruling that the chapel in this case could fall under Article 55 No. 5 of the Enforcement Decree of the Road Act as a space divided by walls in all directions. Generally, the occupancy permit for the part provided for the original function of the road (general transportation) should be regarded as the exercise area of ​​the public utilities management right, so it is difficult to say that it falls under ‘property management’ unless there are special circumstances. The Supreme Court ruled that the subterranean part of the road subject to the road occupancy permit in this case was not directly related to the original function and purpose of the road, which is the passage of the general public, and was substantially similar to lease, and thus constituted ‘property management’. While maintaining the standard that the road occupancy permit does not correspond to the property management subject to the resident's lawsuit, exceptionally, when realizing and utilizing the property value of the property of the underground space of the road site other than the road as a Public utility, it is deemed to be the subject of a resident lawsuit. In disputes related to road occupancy permission, it is reasonable to contend with the violation of the law by recognizing legal interests to residents or business owners adjacent to the road, thereby expanding the allowable range of appeal suit, which is the primary right remedy procedure in Korea's administrative litigation. In addition, as a taxpayer's lawsuit, it is considered desirable to limit the scope of the review in the residents' lawsuit to whether or not the fiscal act is illegal due to unreasonable damage to the local government's finances (from the perspective of financial accounting) in accordance with the purpose of the residents' lawsuit. It is expected that more flexible legal principles will be developed and applied to seek to establish a desirable relationship between the residents' lawsuit and the appeals lawsuit through specific follow-up judgment cases.